Redskins trademark cancelled

July 4th, 2014

I’d like to chime in about the recent trademark news concerning the Washington Redskins football team.

If you are unaware of the recent controversy, the story begins at least as early as 1992, when Suzan Harjo and six other plaintiffs petitioned the US Patent and Trademark Office (USPTO) to cancel the REDSKINS trademark on the grounds that it is disparaging, scandalous, contemptuous, or disreputable towards Native Americans or Aboriginal persons. The cited grounds exist in US trademark legislation, and similar legislation exists in Canada under section 9(j) prohibiting a trademark which is “scandalous, obscene, or immoral”. The case went on for 7 years but finally the USPTO cancelled the mark only to have the appeal court overturn that decision, finding insufficient evidence of disparagement. The court also mentioned that the team had been named as such for several years, and any claim on the basis of disparagement was extinguished by the doctrine of laches (i.e. if the plaintiffs were concerned, they should have brought the case much sooner).

The most recent trademark dispute is filed by Amanda Blackhorse and 4 other plaintiffs, claiming the same or similar issues. The difference in this case is that since 1992, the USPTO has rejected applications for eleven new applications containing the component REDSKINS on the basis that it is disparaging. Allegedly as well, the plaintiffs claim that a new generation of plaintiffs and Native American persons is not bound by the previous delays and the doctrine of laches. The USPTO agreed with the plaintiffs and cancelled the trademark.

I struggle with this case. While I do agree that society changes and the term REDSKINS may not have been socially disparaging according to the majority of Americans at the time of filing (1978 or first use as early as 1932), the name is certainly disparaging today as much as it was then, to that particular group of persons affected by it. We don’t see trademarks for the “n-word” or other clearly disparaging names. However, the same argument may have applied should such a trademark have existed back in the early 1900s. Would that have been cancelled as well? What would happen if such a disparaging term, while historically disparaging, became socially acceptable to even those affected groups?

To be clear, the cancellation of the Washington Redskins trademark is not an order that the team change its name. However, it may have implications in licensing its product sales or spinoff merchandise as well as other associated trademarks and names, such as its cheerleading squad, the Redskinettes.

It will be interesting to see how this case evolves, as undoubtedly the Washington Redskins team will launch an appeal.